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Taser or Stun Gun Is Not a “Dangerous Instrument” for Purposes of Burglary and Menacing Statutes; Court Must Articulate Specific Reasons for Shackling Defendant During Trial

Proof that the defendant threatened the complainant with a taser or stun gun was legally insufficient to establish the “dangerous instrument” element of burglary in the first degree and menacing in the second degree.  Although the Second Department determined it was harmless error, the Court also noted that it was error to shackle the defendant and put black bunting around the defense table, without also putting black bunting around the prosecution table. The jury, in that circumstance, may have inferred the bunting was designed to hide shackles.  “The federal constitution ‘forbids the use of visible shackles … unless that use is justified by an essential state interest … specific to the defendant on trial’ …”.  County Court, in this instance, failed to articulate on the record an adequate justification individualized to the defendant for the shackling … .  People v Morillo, 2013 NY Slip Op 01572, 2010-11438, Ind No 2052/09, 2nd Dept. 5-13-13

 

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